Family Law: Has the penny finally dropped on early legal advice?

In his new February article written exclusively for Cansford, Family Law blogger John Bolch looks at legal aid, where we are now and his take on resolving family issues and mediation...

Back in 2013 the government, in its infinite wisdom, chose to abolish legal aid for most private law family cases.

But that was okay, because the government had a great idea to replace legal aid: mediation!

All those people who could no longer get legal aid wouldn’t need legal representation anyway, because their cases would be channelled into mediation, where they would resolve their disputes, without having to go to court.

Needless to say, the new policy didn’t go well.

Early advice has benefits

Not only has the policy resulted in many thousands of litigants having to navigate the arcane intricacies of our family justice system unaided (and many so daunted by that prospect that they give up seeking justice at all), but it resulted in far fewer mediations taking place.

You see, those horrible avaricious lawyers who were pocketing all that legal aid cash (actually a pittance, but that’s another matter) were directing clients towards mediation (as I did myself when I was practising), and without that direction the number of couples using mediation dried up.

Who would have guessed?

Even now, nearly eleven years later, the number of mediation starts is sitting at around half of the levels they were at prior to 2013.

And it’s not as if the government hasn’t been told about the benefits of early legal advice. So often over the following years the Law Society, Resolution and others repeated the mantra: early advice is not just beneficial per se, but it also helps people settle cases, not just by encouraging settlement, including via mediation, but by explaining likely outcomes, thereby encouraging realistic expectations.

Resolving private family disputes

The most recent example of the mantra occurred in response to the consultation the government ran last year on resolving private family disputes earlier through family mediation.

The central proposal in the consultation was that, in appropriate cases, mediation should be compulsory before an application is made to the court. However, that proposal has been shelved for now and instead the government made an unexpected announcement (well, it was unexpected to me).

Legal advice in the consultation

Although the government didn’t ask a specific question about the role of legal advice in the consultation, we are told that: “many respondents considered that the lack of free, publicly funded, family law legal advice was a barrier to early dispute resolution”, and that: “providing funded access to early legal advice would improve the information available to parents/carers, allowing them to make better informed decisions about their dispute, and potentially leading to improved outcomes for parents/carers and their children.”

Not exactly rocket science, but there we go.

Well, surprise, surprise, it seems that the government has at last taken heed.

Pilot announced

In its response to the consultation the government has announced that it “will launch a new pilot on legal advice, specifically designed for parents/carers facing challenges when agreeing their child arrangements.” The pilot, we are told, “will seek to demonstrate the benefits of high-quality legal advice for families looking to resolve their issues through the courts and, where court is deemed necessary, better prepare them for the court process.”

Unfortunately, there is little further detail about how this will work, as the plan is not yet in the design phase.

So what's the situation now then?

In fact, it seems all a little grudging. The benefits of early legal advice are, surely, self-evident. But the government is not so sure. They don’t think there is enough data to prove what impact early advice can have for families.

So before any government-funded early legal advice scheme is fully rolled out the government wants to evaluate its impact, saying: “Through this pilot we aim to assess the potential benefits, both in facilitating the earlier resolution of disputes and expediting court-based resolution where required.”

So perhaps we shouldn’t get too carried away...

The only other details given were that the government plans to launch the pilot in specific regions in England and Wales by summer 2024, and that the government’s “goal is to collaborate closely with stakeholders in the legal and advice sectors to design a pilot that effectively assists participating families in resolving their disputes and enables us to collect crucial evidence on the role of legal advice in dispute resolution.”

Of course, a crucial issue will be remuneration. If this is not set at a reasonable level then there will be great difficulty in recruiting sufficient lawyers to provide early advice. We already know that the government’s plans for publicly-funded lawyers to represent alleged abusers who might otherwise have to cross-examine their victims in court are floundering, because so few lawyers are offering their services.

The penny may have dropped, but let’s hope that the remuneration is not to be counted in that denomination.